7th Court of Appeals holds vested rights statute requires a showing of two permits; one vesting and one after a change in regulations

Jon E. Jacks v. The Zoning Board of Adjustment of the City of Bryan  07-18-00174-CV (Tex. App. – Amarillo, July 9, 2019)

This is a board of adjustment appeal/vested rights case where the Seventh Court of Appeals upheld the Zoning Board of Adjustment’s motion for summary judgment.

Jacks purchased a piece of property in a residential subdivision intending to build a laundromat. Because the original plan for the subdivision had been filed with the City in 1960, Jacks asserted he possessed a vested right to 1960 regulations under chapter 245 of the Texas Local Government Code. When asked for a declaration from the City’s planning department that he possessed vested rights, Jacks was informed the City had no process for a blanket declaration and Jacks must apply for a permit on the project before an analysis of any vested right is performed. Relying on an e-mail “denial” from the Planning Manager Jacks pursued an appeal of this decision to the City’s Zoning Board of Adjustment. The Board denied Jacks’ request noting Jacks failed to identify any specific regulation that had changed, and Jacks failed to identify any permit application that had been denied.  Jacks appealed to district court pursuant to Tex. Loc. Gov’t Code §211.011.  The trial court granted the City’s motion for summary judgment and Jacks appealed.

Under Texas Local Government Code §245.002, once an application for the first permit of a development is filed all subsequent applications for permits shall be considered under the laws and regulations in effect at the time the first application was filed. The Amarillo Court of Appeals held the statute requires two permit applications be involved; one to vest the rights and the second after a law changed but which must be applied under the old law. Here, Jacks pointed to the 1960 first application, but failed to point to a second application in which the City tried to apply a different set of rules.  Second, Jacks objected to the trial court considering evidence not presented at the Board level.  Jacks did not preserve his objection, but additionally, §211.011 authorizes the trial court to consider additional evidence. As a result, the trial court properly dismissed the claims.

If you would like to read this opinion click here. Panel consists of Chief Justice Quinn, Justice Pirtle and Justice Parker. Memorandum Opinion by Justice Parker. Jon Jacks appeared pro se. The attorneys listed for the ZBA are Ryan S. Henry, Artin T. DerOhanian and Michael McCann Jr.